R STATES OF JERSEY DRAFT ACCESS TO JUSTICE (JERSEY) LAW 201- States Assembly

 
R STATES OF JERSEY DRAFT ACCESS TO JUSTICE (JERSEY) LAW 201- States Assembly
STATES OF JERSEY

                   r
 DRAFT ACCESS TO JUSTICE (JERSEY)
            LAW 201-

        Lodged au Greffe on 25th February 2019
                by the Chief Minister

               STATES GREFFE

2019                                             P.23
R STATES OF JERSEY DRAFT ACCESS TO JUSTICE (JERSEY) LAW 201- States Assembly
R STATES OF JERSEY DRAFT ACCESS TO JUSTICE (JERSEY) LAW 201- States Assembly
DRAFT ACCESS TO JUSTICE (JERSEY) LAW 201-
                      European Convention on Human Rights

In accordance with the provisions of Article 16 of the Human Rights (Jersey) Law
2000, the Chief Minister has made the following statement –

In the view of the Chief Minister, the provisions of the Draft Access to Justice (Jersey)
Law 201- are compatible with the Convention Rights.

Signed: Senator J.A.N. Le Fondré
          Chief Minister

Dated:    9th January 2019

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R STATES OF JERSEY DRAFT ACCESS TO JUSTICE (JERSEY) LAW 201- States Assembly
REPORT

1.      Summary
The Draft Access to Justice (Jersey) Law 201- (“the draft Law”) would improve
access to justice by establishing, for the first time, a legislative basis for legal aid in
Jersey. The draft Law would make the Judicial Greffier responsible for the
administration of the Legal Aid Scheme (“the Scheme”). A new Legal Aid Guidelines
Committee would be established to assist and advise the Chief Minister in making the
Legal Aid Guidelines (“the Guidelines”). The draft Law sets out the matters that the
Guidelines must and may provide for.
The Judicial Greffier would be able to entrust any part of the administration of the
Scheme to the Law Society of Jersey (“the Law Society”) or others as deemed
appropriate. The Scheme would be subject to the Comptroller and Auditor General,
and would also be subject to Freedom of Information legislation. The Judicial Greffier
would be required to prepare an annual report in respect of the Scheme, which the
Chief Minister must then present to the States Assembly.
The draft Law would also clarify that an advocate or solicitor can enter into
conditional fee agreements (often referred to as ‘no win, no fee’ agreements), provided
that such agreements do not include a success fee. In addition, the draft Law amends
existing legislation so as to ensure that the practice of the Courts in relation to costs in
criminal and extradition cases would be aligned with any new Scheme. The draft Law
would come into force following a decision by the Assembly regarding an Appointed
Day Act.
Whilst the Guidelines for any revised Scheme cannot be established until this draft
Law has been decided upon and has come into force, there has been extensive
discussion with the Law Society and others, including a public consultation, regarding
a revised Scheme.
2.      Background
A summary is provided below of recent events which have led to the lodging of this
draft Law. Whilst the legal aid scheme in Jersey has been the subject of a number of
previous reviews, court cases and legal opinions, the summary below seeks only to
capture more recent events.
2.1        Existing legal aid scheme in Jersey
The basis for the existing legal aid scheme in Jersey is a professional obligation on
locally qualified lawyers to carry out this task on behalf of “widows, the poverty
stricken, orphans and undefended persons”. The obligation derives from an Oath and
is defined by guidelines determined by the Law Society. The Law Society is a
statutory body, and the Guidelines are a Code of Conduct obligation, enforceable by
way of the Law Society’s statutory Disciplinary Committee.
All Jersey lawyers of less than 15 years’ call who are in private practice are required
to participate in the legal aid scheme. (For the avoidance of doubt, advocates and
solicitors employed within the Law Officers’ Department or Judicial Greffe are
exempted from participation in the legal aid scheme.) The existing scheme is
administered in accordance with the “Tour de Role”, which is a list of participating
lawyers to whom legal aid work is allocated in rotation. The scheme is currently the
responsibility of the Bâtonnier, on behalf of the legal profession. In practice, the
Bâtonnier nominates an Acting Bâtonnier, whose responsibility is to administer the

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legal aid scheme. In addition, the Acting Bâtonnier’s office is responsible for
maintaining a rota system for providing legal advice to individuals detained at Police
Headquarters or Customs and Immigration, and to individuals at the Magistrate’s
Court, Youth Court and Citizen’s Advice Jersey. Each rota allows the participating
lawyer to obtain ‘credits’, which allows them to ‘miss’ a certificate in return for the
work undertaken on one of the rotas. During 2017, there were a total of 950 legal aid
certificates issued, of which 537 related to criminal matters, 293 to family law matters,
and 120 to other civil matters (such as personal injury and housing issues).
Unlike elsewhere in the British Isles, the current legal aid system is not publicly
funded, although there is a legal aid vote administered by the Judicial Greffe in order
to fund the more onerous cases. In addition, some aspects of public law are already
fully publicly funded, such as public law children’s cases. Other than through the
Oath, there is currently no dedicated legislation which governs the scheme.
A factual description of the current Jersey legal aid system was prepared and
published on www.gov.je in June 2014 as part of the Review of Access to Justice in
Jersey (see below).
2.2     Guernsey and the Isle of Man
The current legal aid scheme in Guernsey was put in place following a complaint to
the European Court of Human Rights in 1995, which resulted in the development of a
statutory legal aid scheme, introduced through the Legal Aid (Bailiwick of Guernsey)
Law, 2003. The costs of the scheme are met largely by the States of Guernsey, with
expenditure on legal aid payments amounting to around £2 million in 2016 (with
criminal legal aid payments costing £812,000 and civil legal aid payments costing
£1,173,000). Legal aid is a policy responsibility of the Committee for Employment
and Social Security. The Guernsey Legal Aid Service is separately constituted, but
related to the Royal Court of Guernsey. Expenditure on legal aid administration in
2015 was £390,000.
Legal aid in the Isle of Man has a statutory basis through the Legal Aid Act 1986. The
financial budgets for legal aid are provided by the Social Security Division of the
Treasury. The Isle of Man legal aid schemes cost £2.7 million in 2016/17. The
schemes are administered through the legal aid section of the Isle of Man Courts of
Justice.
2.3     Review of Access to Justice in Jersey
2.3.1   Establishing the review
A proposal lodged by the Chief Minister to undertake a review of access to justice in
Jersey (P.158/2013) was decided upon unanimously by the States Assembly in
January 2014. An Advisory Panel was established, chaired by the then Senator
P.F. Routier, M.B.E., and comprising Senator L.J. Farnham, former Connétable
J. Gallichan of St. Mary and Deputies M. Tadier and J.H. Young of St. Brelade.
Under Ministerial Decision number MD-C-2015-0009 the membership subsequently
appointed comprised Connétable D.W. Mezbourian of St. Lawrence, Deputy
J.A. Hilton of St. Helier and Deputy M. Tadier of St. Brelade. The Panel is supported
by an Expert Group, chaired by the Chief Officer for Community and Constitutional
Affairs, and consisting of representatives from the Law Officers’ Department, Judicial
Greffe, Law Society of Jersey, Bâtonnier, Jersey Chamber of Commerce, Citizen’s
Advice Jersey, and Jersey Consumer Council.

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2.3.2      Call for evidence
A call for evidence was issued in May 2014 for members of the Public and the legal
profession to provide comments on any aspect of access to justice. The evidence
provided was summarised in the first Access to Justice Review: Interim Report
(R.107/2014), which noted that whilst legal aid is only one component of access to
justice, the existing system of legal aid featured in many of the comments received. In
particular, the evidence submitted highlighted the disadvantages of using a “Tour de
Role” system to assign lawyers to legal aid cases, and the barriers to entry faced by
new law firms as a result of the legal aid obligation. A number of respondents
suggested that it was a responsibility of the government to ensure access to justice,
and that the obligation to provide legal aid rests more properly with the state. There
was also a suggestion that the administration of the legal aid system should be
undertaken by the Government in order to ensure that decisions are made only in the
public interest. The majority opinion was that the system needed to be modernised,
working in partnership with the Law Society.
2.3.3      Law Society review of the legal aid scheme
The Advisory Panel considered that the legal aid scheme merited a careful review in
order to ensure that it remained fit for purpose. The Panel therefore welcomed plans
by the Law Society to undertake a comprehensive review of the legal aid scheme, in
consultation with its members, as noted in the Access to Justice Review: Second
Interim Report (R.89/2015). The Law Society commenced a comprehensive review of
the legal aid scheme in July 2015, and the Advisory Panel held Public Hearings
regarding the review in 2015 and 2016, as noted in the Access to Justice Review: Third
Interim Report (R.85/2016). The Law Society was expected to reach its conclusions
by the end of October 2016.
2.4     Initial proposals made by the Law Society
The Law Society wrote to Senator Routier on 4th October 2016 to advise that the
review had been completed, and members had resolved on 26th September 2016 to
implement a revised legal aid scheme from 1st January 2017. The revised scheme
gave rise to a number of concerns, as it appeared to represent a reduction in the legal
aid provision available to Islanders. As a result, H.M. Attorney General, as Partie
Publique, made representations to the Royal Court in November 2016 in order to
achieve a stay on the implementation of this revised scheme, with the Chief Minister
as an interested party to these proceedings. The Chief Minister and Senator Routier
subsequently attended an Extraordinary General Meeting of the Law Society on
8th December 2016, at which members agreed to pause the implementation of the
revised scheme in order to enter into discussions with the government. The Court
proceedings have now been set aside, given that satisfactory progress has been made
through discussions involving all parties to develop a new legal aid scheme.
2.5        Development of a revised scheme
It was agreed that discussions would take place within the framework established for
the Access to Justice Review. As a result, there have been many meetings of the
Advisory Panel and the Expert Group over the last 12 months, which have considered
various aspects of the scheme in detail. Officers from the Social Security Department
have joined the later meetings in order to bring their expertise to specific matters
which affect their clients.
These discussions were entered into on the basis of developing a scheme for Jersey
which was comparable with the schemes in place in Guernsey and the Isle of Man, in
order to ensure that Islanders were being treated equitably.

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2.5.1   Public Consultation
The Law Society also undertook a public consultation regarding a revised legal aid
scheme during May and June 2017, which was conducted with the assistance of the
Jersey Consumer Council and Citizen’s Advice Jersey. This public consultation was
supplemented by targeted consultation with the Courts, the Advisory Panel and others.
Public Hearings were held by the Advisory Panel to take evidence from both the Law
Society and from consumer bodies. This consultation informed the development of a
revised scheme.
2.5.2   Law Society
A revised scheme was subsequently considered by an Extraordinary General Meeting
of the Law Society on 12th September 2017, at which it is understood that members
agreed with the revised scheme; and also authorised the Law Society Committee to
agree further minor changes to the scheme, to agree the format and content of the
subsequent guidelines and to support the development of legislation to underpin the
legal aid scheme.
2.5.3   Further revised scheme
Subsequent discussions conducted through the Expert Group and Advisory Panel
resulted in a further revised scheme, which was felt to provide a broadly satisfactory
basis on which to proceed (details of the draft further revised scheme were included as
Appendix 2 to the Report in P.50/2018), as well as being comparable with schemes in
Guernsey and the Isle of Man. The Council of Ministers considered this further
revised scheme in October 2017, and it was agreed that this should continue to be
progressed, with the scheme put on a statutory basis and other required legislative
changes advanced.
3.      Lodging of P.50/2018 and subsequent developments
Accordingly, the previous Chief Minister lodged P.50/2018 in February 2018. Due to
the significant number of Propositions which were listed for debate at the March and
April States Sittings, it was not possible for the draft Law to be debated prior to the
General Election in May. Following the election of a new Chief Minister in June, the
Projet was again deferred to allow time for the Chief Minister to be briefed on the
proposals. P.50/2018 was withdrawn under Standing Order 34(2).
Prior to re-lodging, the Chief Minister requested that the draft Law be considered by
the Council of Ministers. Scrutiny also commenced a review of the draft Law, and the
proposed revised Scheme, on 30th August 2018. This review was commenced in
anticipation of the draft Law being re-lodged in due course.
At a meeting with Policy and Law Officers, the Scrutiny Panel informally mentioned
some possible amendments to the draft Law. These were considered by the Chief
Minister. The proposals from Scrutiny that were accepted are –
Article 6
   The addition of 2 States Members, nominated by the States, to the membership of
    the Legal Aid Guidelines Advisory Committee.
   Increasing the quorum for meetings of the Committee from 5 to 7 members, and a
    requirement for reports of the Committee to be signed by not less than 7 members
    (from the previous requirement of reports to be signed by 5 members).

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Article 7
   Introducing a procedure for the Minister to lay the Legal Aid Guidelines, or any
    revisions to the Guidelines, before the States for at least a 4 week period before
    they can be made and published. As part of this process, a States Member will be
    able to lodge a Proposition during this 4 week period requesting that the initial
    Guidelines, or any amendments, are annulled.
Other amendments to P.50/2018 include a requirement under Article 6(9) for the
Advisory Committee to provide a report to the Chief Minister no later than 6 months
after its establishment; confirmation that interim reports submitted under Article 15(3)
will be presented to the States; and revisions to Article 17 to widen the power of the
Assembly to amend the Law by Regulations.
Other typographical, linguistic and minor amendments have also been made that are
not considered to have any significant impact on the provisions of what is being
proposed, and are therefore not referred to in detail.
Council of Ministers
An amended version of P.50/2018 was considered by the Council of Ministers on
17th October 2018. The Council agreed, by a majority vote, that the draft Law as
amended could be re-lodged by the Chief Minister. It should be noted that the current
Council of Ministers has not discussed in detail the draft revised Scheme that was
attached as Appendix 2 to the report within P.50/2018, and is again attached as
Appendix 2 to the report within this Projet. It is intended that the revised Scheme be
presented to the Legal Aid Guidelines Advisory Committee to assist their work in
developing a report in accordance with Article 6(1) and (9).
Scrutiny
The Scrutiny review has, to date, issued various calls for evidence on the proposed
revised Scheme, with responses already having been received from Citizen’s Advice
Jersey, the Bâtonnier, Consumer Council, Law Society and the Judiciary. It is
anticipated that the Scrutiny review of the draft Law and Scheme will continue, and a
report will be provided for States Members in advance of the debate in the Assembly.
Engagement with the Law Society
Discussions with the Law Society have been ongoing since the lodging of P.50/2018.
The Chief Minister met representatives of the Law Society on 14th August 2018. The
Expert Group met on 28th September 2018. Following the agreement of the Council
of Ministers to re-lodge the draft Law, the Chief Minister wrote to the President of the
Law Society on 19th October 2018.
A dialogue then commenced with the Law Society regarding a proposal of the Chief
Minister to include a provision in the draft Law which would have allowed the legal
aid scheme that is in operation today to be brought into force under the Law. This
would have served as a one-off transitional provision, only to be used if necessary
whilst the process to implement a revised scheme was undertaken in accordance with
the Law. This proposal was raised by the Chief Minister with the Council of Ministers.
The Law Society indicated in clear terms that they were not supportive of this
proposal and asked that the Chief Minister reconsider. Following a further exchange
of correspondence, the Chief Minister agreed not to pursue this particular proposal.
The Law Society agreed that the current scheme will continue to be supported for
6 months following (and subject to) States Assembly approval of this draft Law,
whilst work is undertaken to agree and implement a revised scheme under the Law.

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Process for implementing a new Scheme
In the event that the Assembly approves the draft Law, it is expected that the Legal
Aid Guidelines Advisory Committee would meet in Shadow form, in advance of the
Law being registered, to begin the process of recommending a revised Scheme to the
Chief Minister.
4.      Financial and manpower implications of the further revised scheme
Whilst this draft Law does not of itself have any direct public resource or manpower
implications, it would enable Guidelines to be decided upon in due course which could
have resource implications. The public resource implications of the draft further
revised scheme (the ‘draft scheme’, as attached at Appendix 2 to this report) are,
therefore, explained below.
4.1     Public Law Cases
The draft scheme features a public law (i.e. mainly criminal) legal aid scheme which
would be funded by the public purse on a fixed fee basis, largely by re-using existing
funds from the court and case costs budget, which would be deployed in a more stable
manner than the current cost fluctuations, as explained below.
4.1.1   Public Law Children Cases and Mental Health Review Tribunal
Payment is already made from public funds in relation to public law children and child
abduction cases. Such payments are made to accredited lawyers on a fixed price basis.
There are, therefore, no additional budgetary implications in relation to the draft
scheme in this regard, which simply maintains the status quo. Payments under a fixed
price scheme are also presently made to lawyers in relation to cases before the Mental
Health Review Tribunal. There are, therefore, no additional budgetary implications in
relation to the draft scheme in this regard.
4.1.2   Criminal Cases
Payment for costs in criminal cases are currently made from public funds to lawyers in
respect of a defendant who is acquitted following a trial in the Magistrate’s, Youth or
Royal Court, or when the Crown abandons the prosecution in whole or in part.
Payment is made at hourly rates, depending on the level of experience of the legal fee
earner and the complexity of the case. The costs obtained from public funds are the
whole costs of the defence and so can be significant. In addition, payment is currently
made on an ex gratia basis to lawyers in a small number of complex cases which are
felt to represent an unduly onerous burden to the lawyer appointed under the existing
legal aid scheme.
The draft scheme proposes a fixed price approach in relation to criminal cases and so
extends the scope of the existing fixed price schemes (as mentioned above). Such a
fixed price scheme for criminal cases is felt to be fairer, to remove the current budget
volatility and to provide improved certainty in terms of budgeting and forecasts. On
the basis that the Law is amended so that the lawyers of acquitted defendants receive
simply the fixed fee amount, it is anticipated that the fixed price approach contained
within the draft scheme could be accommodated within existing budgets. Whilst the
new scheme would, therefore, be broadly cost-neutral, there may be a need on
occasion (depending on volume of cases in any one year) to utilise recurring
underspends within existing heads of expenditure in the Judicial Greffe court and case
costs budget (usually around £300–£400,000). Furthermore, Regulations will be
proposed which would include a provision for the Court to award additional costs in
cases of hardship. In addition, it should be noted that H.M. Attorney General
consulted the Law Society between August and December 2016 regarding the need to
limit the exposure of the office of Attorney to costs and damages when providing

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international co-operation to other jurisdictions. These law amendments have been
advanced through the International Co-operation (Protection from Liability) (Jersey)
Law 2018. An Appointed Day Act to bring the Law into force will be lodged shortly.
A new criminal law panel would be formed of specialist legal practitioners. It is
understood that a number of local firms have already committed to joining this
criminal law panel. Payments to lawyers who are accredited members of this panel
would be administered through a new legal aid office (see below), under the day-to-
day supervision of the Law Society, but ultimately accountable to the Judicial
Greffier, and operating in accordance with a formal service agreement.
The establishment of a specialist panel of criminal practitioners, overseen by the
Judicial Greffe, and available to support those with relative low incomes facing
criminal charges, would address concerns expressed in earlier consultations regarding
the use of the “Tour de Role” system for criminal matters. This specialist expertise
would also extend to the Duty Lawyers and Duty Advocate schemes (see below), thus
ensuring improved initial support for those arrested and brought before the Courts,
again overseen by the Judicial Greffe.
4.1.3   Criminal Law – ensuring sufficient lawyers
As explained above, legal aid representation in criminal law will be on the basis of a
criminal law panel rather than the present “Tour de Role” system. There has been a
need to consider what would happen if insufficient lawyers come forward for the
panel to carry out the necessary defence work. As a result, there is a safeguarding
provision in the draft Law for the Legal Aid Guidelines to be revised, if necessary, to
revert to the “Tour de Role” system.
4.1.4   Exception Case funding
Provision is also made for exception case funding. This means that funding will be
given to exception cases which fall outside the ordinary Legal Aid Guidelines, but
where funding is required to ensure compliance with Convention rights. A similar
system exists in the English legislation, creating a human rights safety net. This might
be because a fair trial would be impossible without funding, or because a lack of
representation might endanger other human rights. Guidelines will be issued, learning
from English precedent, which have themselves been shaped by English Court of
Appeal case-law.
4.2     Private Law Cases
Private law legal aid (i.e. mainly family and personal injury cases) would continue to
be provided by local law firms at their own expense using the existing “Tour de Role”
system.
4.3     Legal Aid Office
A new legal aid office would be established, which would be overseen ultimately by
the Judicial Greffe, along with a publicly funded fixed fee Duty Solicitor and Duty
Advocate service to support those taken into custody or taken before the Courts. This
would require a net growth in revenue funding for the Judicial Greffe of around
£400,000 per annum, based on a review of legal aid cases in recent years. This net
growth in public funding is expected to be requested from contingencies for 2018 and
2019 (depending on progress with this draft Law), and would become a revenue
growth funding consideration as part of the next Medium Term Financial Plan
covering 2020 onwards.
The establishment of a legal aid office, overseen by the Judicial Greffe, would
improve transparency and perceived fairness in the administration of the legal aid
system. The establishment of the office would also provide significant opportunities to

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improve the provision of legal advice to Islanders through, for example, the provision
of legal surgeries and enhanced information for litigants in person. In addition, it is
expected that the office would have a valuable role in promoting more use of
alternative dispute resolution. It should be noted that funding of £150,000 to £160,000
(from contingencies) for the Legal Aid Office only (not the fixed fee Duty Solicitor
and Duty Advocate service) has been agreed for 2019.
5.       Next steps if the draft Law is adopted
As mentioned above, if this draft Law is adopted and brought into force, then the
Legal Aid Guidelines Advisory Committee would be established. The Committee
would consider the draft further revised Scheme (as attached at Appendix 2 to this
report) and, having consulted appropriately, advise the Chief Minister regarding the
Guidelines for a new Scheme. The Chief Minister would, for the first time, be
accountable to the Assembly and the Public for the Island’s Legal Aid Guidelines. The
Judicial Greffier would be accountable, personally and to the Assembly, for the use of
public resources and administration of the Scheme. The Scheme would, for the first
time, be subject to Freedom of Information legislation.
It will be necessary to bring forward Regulations for the efficient running of the Law,
addressing the matters set out in Article 17 of the draft Law. It will also be necessary
to pass Regulations under the Costs in Criminal Cases (Jersey) Law 1961 to ensure
that awards of costs in criminal cases are appropriate to rates of criminal legal aid.
This will avoid the “volatility” issue explained above in section 3.1.2.

Human Rights
The notes on the human rights aspects of the draft Law attached in Appendix 1 to this
report have been prepared by the Law Officers’ Department and are included for the
information of States Members. They are not, and should not be taken as, legal advice.

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APPENDIX 1 TO REPORT

       Human Rights Notes on the Draft Access to Justice (Jersey) Law 201-
These Notes have been prepared in respect of the Draft Access to Justice (Jersey)
Law 201- (the “draft Law”) by the Law Officers’ Department. They summarise the
principal human rights issues arising from the contents of the draft Law and explain
why, in the Law Officers’ opinion, the draft Law is compatible with the European
Convention on Human Rights (“ECHR”).
These notes are included for the information of States Members. They are not,
and should not be taken as, legal advice.

1.       Relevance of Convention Rights
The requirement under the European Convention for legal assistance to be made
available to individuals can arise in 3 ways:
     -   In respect of criminal legal aid, Article 6(3)(c):
                  “Everyone charged with a criminal offence has the following
                  minimum rights:… (c) to defend himself in person or through legal
                  assistance of his own choosing or, if he has not sufficient means to
                  pay for legal assistance, to be given it free when the interests of
                  justice so require;…”.
     -   There is a trial to determine civil rights to which Article 6 applies, and there
         could not be a fair trial if the litigant were to be unrepresented, see Airey v
         Ireland (1979–80) 2 EHRR 305.
     -   In order to secure other convention rights where the subject matter of a
         hearing is not strictly one of “civil rights” for the purposes of Article 6.
         Immigration is an example of this, as is where relatives require representation
         to make effective an inquest required by reason of Article 2 of the Convention
         (“right to life”).
It should be noted that, outside the requirements of Article 6(3)(c) for representation in
criminal matters, there is no general Convention duty for a jurisdiction to have
arrangements providing such free (or reduced cost) assistance. The requirement to
provide such assistance so as to ensure fairness of a civil hearing (see Airey v Ireland)
rarely applies. This is why English legislation, as we shall now see, talks in terms of
“exceptional case” provision when securing Convention Rights through legal aid in
non-criminal cases.
The question of how a scheme is administered does not of itself give rise to human
rights questions. It is the end result in terms of access to a fair trial that is the sole
concern, so only inherent or systemic unfairness in the scheme of administration can
create human rights concerns, see Holmes v The Law Society of Jersey [2018]
JRC010. No such concerns exist.
2.      The draft Law
The relevant parts of the scheme of the draft Law are:
     -   The legal aid scheme is administered in accordance with Guidelines issued by
         the Minister.
     -   Guidelines will be issued under Article 7 of the Law creating the legal aid
         scheme. This will deal with ordinary entitlement to legal aid.

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-   Article 9 of the Law provides a positive duty for the Minister when issuing
         Guidelines to provide for exceptional case legal aid representation in cases
         where (a) the Convention requires such representation, but (b) the ordinary
         Guidelines do not deal with it.
Article 9 mirrors section 10 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012. Section 10 provides for “exceptional case” provision of legal aid.
The Lord Chancellor of England and Wales is required to issue guidance to the
Director of Legal Aid Casework to ensure that civil cases that require legal aid for
Convention Rights receive such aid.
This is of itself sufficient for the Law to be compatible.
As in England and Wales, compatibility is ultimately secured by the content of the
Guidelines to be published under the statute. There have been challenges to the Lord
Chancellor’s Exceptional Case Guidance on human rights grounds, although largely
on the grounds of its complexity making it occasionally necessary to have legal advice
in order to navigate the application system: Howard League for Penal Reform v the
Lord Chancellor [2017] 4 WLR 92.
In respect of the proposed Jersey scheme it can be said:
     (a) Public Law Legal Aid (Criminal) will be available in cases where a fairly
         minimal seriousness threshold is reached. It will be available in all cases
         where the defendant is under 18. There is no merits test, except for appeals.
         There are no residential criteria. The principal hurdle will be the question of
         financial need – a restriction clearly contemplated by Article 6(2)(c) of the
         Convention. It is in particular noted that the requirement to pay contributions
         is qualified by limits on how much can be required per month to meet such
         contributions. It is important that such criteria are appropriate to Jersey, and
         this is a matter which has been considered at length by the Expert Group and
         by the States’ own Access to Justice Advisory Panel. There is no basis for the
         LOD advising that what is proposed will be contrary to the Convention.
     (b) It is proposed that the Guidelines on Exceptional Case provision to meeting
         Convention Rights requirements should – albeit in a simplified form – draw
         greatly from the current Lord Chancellor’s Guidance. That Guidance has itself
         been shaped by human rights challenges. There is no reason to believe that
         what is proposed will be contrary to the Convention. This would only be the
         case if it created a systemic problem leading to the denial of legal aid where
         required by the Convention (see Holmes v Law Society of Jersey, Royal Court,
         16 January 2018).
3.       Legal professional privilege
Articles 12 and 13 ensure that information provided by the applicant for legal aid
remains confidential and privileged. This is an important concept for the right to a fair
hearing (see R, ex parte Morgan Grenfell v Special Commissioner) and also the right
to privacy. Information can be shared by the assisted person’s lawyer to those
administering legal aid, which is necessary for the proper administration of the system
and thus plainly proportionate.
4.       Conclusion
For the above reasons, the Law Officers advise that the draft Law is compatible with
Convention Rights.

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APPENDIX 2 TO REPORT

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Explanatory Note

This Law makes provision for improving access to justice by establishing a legal aid
scheme.
Article 1 sets out definitions for certain terms used in the Law.
Article 2 imposes a duty on advocates and solicitors of the Royal Court to provide
legal aid to a person in accordance with this Law, without prejudice to the generality
of their respective oaths of office.
Article 2 also provides that a failure by an advocate or a solicitor to discharge the duty
specified in their respective oaths of office would be professional misconduct and a
complaint against an advocate or solicitor alleging professional misconduct on
grounds of failure to discharge that duty must be made and determined under Part 3 of
The Law Society of Jersey Law 2005.
Article 3 makes provision for the establishment of a scheme (the “Legal Aid Scheme”
as defined in Article 1) for the provision of assistance in Jersey in a case where an
individual is in need of legal services (as defined in Article 1).
Article 4 makes provision for the Judicial Greffier to be responsible for the
administration of the Legal Aid Scheme. The Judicial Greffier has the power to entrust
any part of the administration of the Legal Aid Scheme to the Law Society or to such
other person as the Judicial Greffier deems appropriate except for the responsibility
for meeting payments under the Legal Aid Scheme and the requirements imposed on
the Judicial Greffier under Article 16. For the purposes of Article 3(b) of the Freedom
of Information (Jersey) Law 2011, information in respect of the administration of the
Legal Aid Scheme held by a person to whom an entrustment is made under
paragraph (2), would be information that is held on behalf of the Judicial Greffier. The
administration of the Legal Aid Scheme must be carried out in accordance with the
Legal Aid Guidelines (as defined in Article 1), except that, notwithstanding any
provision to contrary in this Law or the Regulations or an Order made under this Law
or the Legal Aid Guidelines, the Judicial Greffier may, in exceptional circumstances,
provide legal aid to any person where the interests of justice requires it.
Article 5 makes provision for the States to ensure that the Judicial Greffier is provided
with sufficient resources for the purpose of meeting payments under the Legal Aid
Scheme. Where a function is entrusted to the Law Society under Article 4(2), the Law
Society would, to the extent of those functions, be a States aided independent body for
the purposes of Article 14 of the Comptroller and Auditor General (Jersey) Law 2014.
By Article 6, a committee to be known as the Legal Aid Guidelines Advisory
Committee is established for the purpose of advising and assisting the Minister in
making the Legal Aid Guidelines. The Committee is composed of the members
specified in Article 6 and is chaired by the Judicial Greffier who is a member.
The other members, except those nominated by the Bailiff Chief Minister or the
States, may nominate a person in their stead, subject to prior consultation with the
Judicial Greffier. The Committee is quorate with 7 members. Before advising and
assisting the Minister in making the Legal Aid Guidelines, the Committee must
consult the Bailiff and Magistrate and such other persons it considers appropriate, and
meet (unless a meeting would be inexpedient). No later than 6 months after its
establishment, the Committee must make its first report to the Minister for the purpose
of advising and assisting him or her in making the Legal Aid Guidelines.

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Article 7 gives the Minister the power, with the advice and assistance of the Legal Aid
Guidelines Advisory Committee, to make guidelines (the “Legal Aid Guidelines”) for
the purposes of providing for the administration of the Legal Aid Scheme, including
providing for the manner in which legal aid shall be provided in Jersey; for the
responsibility for meeting the reasonable costs of legal representation in matters under
the Legal Aid Scheme; for the financial cost to individuals who are provided with
legal aid; and information regarding the Legal Aid Scheme to applicants for legal aid
and to advocates and solicitors who provide legal services under the Legal Aid
Scheme.
Article 7 also sets out the matters that the Legal Aid Guidelines may provide for,
including, specifying the types of cases that may be eligible or not be eligible for legal
aid; providing for different types of cases to be dealt with in accordance with different
systems of legal aid; specifying the factors that may be relevant to providing legal aid
and establishing financial eligibility criteria by reference to income and capital,
including that of the applicant’s household.
By Article 8 the Legal Aid Guidelines may provide for the transfer of different types
of cases between the different systems of legal aid referred to in Article 7(2)(b).
Provision is made so that the Legal Aid Guidelines may, in particular, provide for the
transfer of cases in respect of legal services referred to in Article 7(2)(b)(ii) if there are
insufficient advocates or solicitors to support the system of legal aid under which
those legal services are provided.
Article 9 requires that the Legal Aid Guidelines must make provision for legal aid to
be provided in exceptional circumstances which shall include cases in respect of
which compliance with the Human Rights (Jersey) Law 2000 or any other enactment,
obligations arising under Article 2 of the European Union (Jersey) Law 1973 or
obligations arising under international obligations, requires that such legal aid be
provided.
By Article 10, where funding for legal aid is by way of public funds, the Judicial
Greffier has the power to determine, in accordance with the Legal Aid Guidelines, that
such funding should be subject to contributions by the individual to whom legal aid is
provided. An individual provided with legal aid is not allowed to raise any issue of
law or fact as regards the duty to pay contributions if it concerns an issue that could
have been raised under appeal rights given by Regulations made under Article 18.
Contributions recoverable from an individual provided with legal aid would be
recoverable as a civil debt by the Treasurer of the States.
By Article 11, an advocate or solicitor may enter into a conditional fee agreement with
any other person. The Minister is given the power by Order to make provision in
respect of conditional fee agreements. The Order may prescribe the conditions
applicable to a conditional fee agreement, but a conditional fee agreement must not
provide for a success fee. A conditional fee agreement is an agreement with a person
providing legal services which provides for his or her fees and expenses, or any part of
them, to be payable only in specified circumstances. A conditional fee agreement
provides for a success fee if it provides for the amount of any fees to which it applies
to be increased, in specified circumstances, above the amount which would be payable
if it were not payable only in specified circumstances.
Article 12 restricts the disclosure of information by any person in connection with the
person’s functions or any other person’s functions under this Law.
Article 13 makes provision for information provided by an applicant to any person for
the purposes of determining entitlement to legal aid to be treated as if it had been

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provided in a client and lawyer relationship for the purpose of determining whether
legal professional privilege applies.
Article 14 protects from liability any person who carries out a function (including any
person who assists in carrying out a function under this Law or carries out a function
under an entrustment pursuant to Article 4(2)) other than a person carrying out a
professional obligation in a client and lawyer relationship Such a person would not be
liable in damages, for consequential loss, or for costs in legal proceedings, in respect
of any act done in the discharge or purported discharge of that person’s functions
under, or authorized by or under, this Law unless it is shown that the act was done in
bad faith. The protection from liability would not apply so as to prevent an award of
damages made in respect of an act on the ground that the act was unlawful as a result
of Article 7(1) of the Human Rights (Jersey) Law 2000. The Minister has the power
by Order to exclude any type of damages, costs or consequential loss from the
application of Article 14.
Article 15 makes provision for an annual report in respect of the Legal Aid Scheme to
be prepared by the Judicial Greffier and to be provided to the Minister who must
present it to the States as soon as is reasonably practicable (and in any case, no later
than 4 months) after the end of the financial year to which the report relates. An
interim report or a report on specific matters arising in respect of the Legal Aid
Scheme may also be provided at the Minister’s request or on the Judicial Greffier’s
own motion.
Article 16 provides for the power to make Rules of Court under the Royal Court
(Jersey) Law 1948 to include a power to make Rules for the purposes of this Law.
Article 17 gives the States the power by Regulations to make such other provision as
the States think fit for the purpose of carrying this Law into effect.
Article 18 gives the Minister the power by Order to prescribe any matter which is to be
prescribed under this Law. An Order may make different provision for different cases
and contain such incidental, supplemental and transitional provisions as appear to the
Minister to be necessary or expedient. The Minister must consult the Judicial Greffier
and the Law Society before making any Orders.
Article 19 amends the Costs in Criminal Cases (Jersey) Law 1961 to insert a reference
to costs being paid by the defendant in Article 6 of that Law.
Article 20 amends the Extradition (Jersey) Law 2004 to provide for Regulations made
under Article 6 of the Costs in Criminal Cases (Jersey) Law 1961 to apply (in addition
to Article 2 of that Law) in respect of an extradition hearing and to provide for
Article 3 of that Law and Regulations made under Article 6 of that Law to apply to
costs on any appeal to the Royal Court against an order for extradition.
Article 21 amends the Magistrate’s Court (Miscellaneous Provisions) (Jersey)
Law 1949 to make provision for costs to be awarded subject to such rates or scales of
payment of any costs payable out of public funds or by the defendant as are provided
for by Regulations made under Article 6 of the Costs in Criminal Cases (Jersey)
Law 1961.
Article 22 amends the Police Procedures and Criminal Evidence (Jersey) Law 2003 to
provide for an order as to costs under Article 106(4)(c) of that Law to be subject to
such rates or scales of payment of any costs payable out of public funds or by the
defendant as are provided for by Regulations made under Article 6 of the Costs in
Criminal Cases (Jersey) Law 1961.

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Article 23 provides the title of this Law and provides for it to come into force on such
day or days as the States may by Act appoint and for different dates to be appointed
for different provisions and different purposes of this Law.

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Draft Access to Justice (Jersey) Law 201-                                                                 Arrangement

 DRAFT ACCESS TO JUSTICE (JERSEY) LAW 201-

Arrangement
Article
1         Interpretation .................................................................................................41
2         Duty to provide legal aid ...............................................................................41
3         Establishment of the Legal Aid Scheme .......................................................42
4         Administration of the Legal Aid Scheme ......................................................42
5         Resources ......................................................................................................43
6         Establishment of Legal Aid Guidelines Advisory Committee ......................43
7         Legal Aid Guidelines ....................................................................................44
8         Transfer of cases............................................................................................47
9         Exceptional circumstances ............................................................................48
10        Contributions .................................................................................................48
11        Conditional fee agreement ............................................................................48
12        Restriction on disclosure of information .......................................................49
13        Legal professional privilege ..........................................................................49
14        Protection from liability for damages, costs and loss ....................................49
15        Annual report and other reports ....................................................................50
16        Rules of Court ...............................................................................................50
17        Regulations ....................................................................................................51
18        Orders ............................................................................................................51
19        Costs in Criminal Cases (Jersey) Law 1961 amended ..................................51
20        Extradition (Jersey) Law 2004 amended .......................................................51
21        Magistrate’s Court (Miscellaneous Provisions) (Jersey) Law 1949
          amended ........................................................................................................52
22        Police Procedures and Criminal Evidence (Jersey) Law 2003 amended ......53
23        Citation and commencement .........................................................................53

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Draft Access to Justice (Jersey) Law 201-                                      Article 1

 DRAFT ACCESS TO JUSTICE (JERSEY) LAW 201-

A LAW to make provision for improving access to justice by establishing a
legal aid scheme, and for connected purposes.

      Adopted by the States                                  [date to be inserted]
      Sanctioned by Order of Her Majesty in Council          [date to be inserted]
      Registered by the Royal Court                          [date to be inserted]

THE STATES, subject to the sanction of Her Most Excellent Majesty in
Council, have adopted the following Law –

1     Interpretation
      In this Law, unless the context otherwise requires –
            “applicant” means an applicant for legal aid;
            “Law Society” has the meaning given by Article 1(1) of The Law Society
            of Jersey Law 20051;
            “Legal Aid Guidelines Advisory Committee” means the committee
            established under Article 6;
            “Legal Aid Guidelines” means the guidelines made under Article 7(1) or
            any revisions to the Legal Aid Guidelines under Article 7(12);
            “Legal Aid Scheme” means the scheme established under Article 3;
            “legal aid” means the provision of legal services under the Legal Aid
            Scheme;
            “legal services” includes legal advice, legal assistance and legal
            representation;
            “Minister” means the Chief Minister;
            “prescribed” means prescribed by an Order made by the Minister.

2     Duty to provide legal aid
      (1)   Without prejudice to the generality of –

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Article 3                                   Draft Access to Justice (Jersey) Law 201-

            (a)   the oath of advocates of the Royal Court administered under
                  Article 8(6)(a) of the Advocates and Solicitors (Jersey) Law 19972
                  and set out in the Code of 17713; or
            (b)   the oath of office of solicitors of the Royal Court administered
                  under Article 8(6)(b) of the Advocates and Solicitors (Jersey)
                  Law 19974 and set out in Schedule 1 to that Law,
            an advocate or a solicitor is under a duty to provide legal aid to a person
            in accordance with this Law.
      (2)   A failure by an advocate or a solicitor to provide legal aid in accordance
            with paragraph (1) shall be professional misconduct and a complaint
            against an advocate or a solicitor alleging professional misconduct on
            grounds of failure to discharge that duty shall be made and determined
            under Part 3 of The Law Society of Jersey Law 20055.

3     Establishment of the Legal Aid Scheme
      There shall be established in accordance with this Law, a scheme to be known
      as the Legal Aid Scheme, for the provision of assistance in Jersey in a case
      where an individual is in need of legal services.

4     Administration of the Legal Aid Scheme
      (1)   The Judicial Greffier shall be responsible for the administration of the
            Legal Aid Scheme.
      (2)   Subject to paragraph (1) and to such directions as the Judicial Greffier
            may from time to time determine, the Judicial Greffier may entrust any
            part of the administration of the Legal Aid Scheme to the Law Society or
            to such other person as the Judicial Greffier deems appropriate, except
            for –
            (a) the responsibility for meeting payments under the Legal Aid
                   Scheme; and
            (b) the requirements imposed on the Judicial Greffier under Article 16.
      (3)   For the purposes of Article 3(b) of the Freedom of Information (Jersey)
            Law 20116, information in respect of the administration of the Legal Aid
            Scheme held by a person to whom an entrustment is made under
            paragraph (2), shall be information that is held on behalf of the Judicial
            Greffier.
      (4)   The administration of the Legal Aid Scheme shall be carried out in
            accordance with the Legal Aid Guidelines except that, notwithstanding
            any provision to contrary in this Law or Regulations or an Order made
            under this Law or the Legal Aid Guidelines, the Judicial Greffier may, in
            exceptional circumstances, provide legal aid to any person where the
            interests of justice requires it.

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Draft Access to Justice (Jersey) Law 201-                                    Article 5

5     Resources
      (1)   The States shall ensure that the Judicial Greffier is provided with
            sufficient resources for the purpose of meeting payments under the Legal
            Aid Scheme.
      (2)   Without prejudice to the application of the Public Finances (Jersey)
            Law 20057 to the Judicial Greffier’s Department, where a function is
            entrusted to the Law Society under Article 4(2), the Law Society shall, to
            the extent of those functions, be a States aided independent body for the
            purposes of Article 14 of the Comptroller and Auditor General (Jersey)
            Law 20148.

6     Establishment of Legal Aid Guidelines Advisory Committee
      (1)   There is established a committee to be known as the Legal Aid
            Guidelines Advisory Committee for the purpose of advising and assisting
            the Minister in making the Legal Aid Guidelines.
      (2)   The Legal Aid Guidelines Advisory Committee shall be chaired by the
            Judicial Greffier who shall be a member of the Legal Aid Guidelines
            Advisory Committee.
      (3)   The Legal Aid Guidelines Advisory Committee shall also consist of the
            following members –
            (a)   the Attorney General or a person nominated by the Attorney
                  General;
            (b)   the most senior officer of the Magistrate’s Court, or a person
                  nominated by that senior officer;
            (c)   the Bâtonnier or a person nominated by the Bâtonnier;
            (d)   the President of the Law Society or a person nominated by the
                  President;
            (e)   the Chief Executive Officer of the Law Society or a person
                  nominated by the Chief Executive Officer;
            (f)   two persons nominated by the Bailiff;
            (g)   two other persons nominated by the Minister who are residents of
                  Jersey and who are not members of the States; and
            (h)   two members of the States, nominated by the States.
      (4)   Before nominating a person under paragraph (3), the Judicial Greffier,
            must first be consulted.
      (5)   A person shall be nominated under paragraph (3) for such period as may
            be specified by the person who has nominated him or her.
      (6)   The Legal Aid Guidelines Advisory Committee may, subject to a quorum
            of not less than 7 members, meet for the conduct of business, adjourn and
            otherwise regulate its procedures as it thinks fit.
      (7)   The Legal Aid Guidelines Advisory Committee shall, before advising and
            assisting the Minister –
            (a)   consult the Bailiff and Magistrate;

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Article 7                                    Draft Access to Justice (Jersey) Law 201-

            (b)   consult such other persons as it considers appropriate; and
            (c)   meet (unless it is inexpedient to do so).
      (8)   The reports of the Legal Aid Guidelines Advisory Committee must be
            signed by not less than 7 members of the Legal Aid Guidelines Advisory
            Committee.
      (9)   The Legal Aid Guidelines Advisory Committee must make a report to the
            Minister for the purpose of advising and assisting him or her under
            paragraph (1) no later than 6 months after its establishment under that
            paragraph.
      (10) The States may, by Regulations, amend the members of the Legal Aid
           Guidelines Advisory Committee listed in paragraph (3).

7     Legal Aid Guidelines
      (1)   The Minister shall, with the advice and assistance of the Legal Aid
            Guidelines Advisory Committee, make and publish guidelines for the
            purpose of providing for the administration of the Legal Aid Scheme,
            including providing –
            (a)   for the conditions under which legal aid shall be provided in
                  Jersey;
            (b)   for the responsibility for meeting the reasonable costs of legal
                  services under the Legal Aid Scheme;
            (c)   for the financial cost to individuals provided with legal aid; and
            (d)   information regarding the Legal Aid Scheme to applicants and to
                  advocates and solicitors who provide legal services under the Legal
                  Aid Scheme.
      (2)   Without prejudice to the generality of paragraph (1), the Legal Aid
            Guidelines may do any of the following –
            (a) subject to Article 9, specify the types of cases that may be eligible
                 or not eligible for legal aid;
            (b) provide for different types of cases to be dealt with in accordance
                 with different systems of legal aid under which –
                  (i)    legal services are provided by an advocate or a solicitor who
                         is paid out of public funds for those legal services, or
                  (ii)   legal services are provided by an advocate or a solicitor who
                         is not paid out of public funds but may receive contributions
                         from an applicant in accordance with the provisions made
                         under sub-paragraphs (f), (g), (h) and (i);
            (c)   specify the factors that may be relevant to providing legal aid, take
                  into account the circumstances in which it is appropriate to provide
                  legal aid, and may, in particular, set out the extent to which the
                  factors ought to reflect the following –
                  (i)    the likely cost of providing the legal services and the benefit
                         which may be obtained by the legal services being provided,

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Draft Access to Justice (Jersey) Law 201-                                       Article 7

                  (ii)    the appropriateness of applying available resources to
                          provide the legal services, having regard to present and
                          likely future demands for the provision of legal services,
                  (iii)   the importance to an individual of the matters in relation to
                          which the legal services would be provided,
                  (iv)    the nature and seriousness of the act, circumstances or other
                          matter in relation to which the legal services are sought,
                  (v)     the availability to an individual of legal services provided
                          and the likelihood of the individual being able to make use
                          of such legal services,
                  (vi)    if the legal services are sought by an individual in relation to
                          a dispute, the individual’s prospects of success in the
                          dispute,
                  (vii) the conduct of an individual in connection with legal
                        services made available or in connection with an application
                        for such legal services,
                  (viii) the conduct of an individual in connection with any legal
                         proceedings or other proceedings for resolving disputes
                         about legal rights or duties,
                  (ix) the public interest, and
                  (x)   an individual’s residential status, length of residency, or
                        other connection with Jersey;
            (d)   set out the system for determining whether legal aid is provided,
                  including provisions in respect of –
                  (i)     obtaining legal opinions, and such other advice as is required
                          to make a determination,
                  (ii)    making provision for the involvement of the Bâtonnier, the
                          Law Society, its employees, or any of its officers in the
                          exercise of functions under this Law, and
                  (iii)   obtaining of an advocate or a solicitor, whether by a system
                          of compulsory assignment of an advocate or a solicitor, or
                          otherwise providing legal representation where an applicant
                          is unable to obtain legal representation;
            (e)   establish financial eligibility criteria by reference to income and
                  capital, including that of the applicant’s household;
            (f)   make provision for determining whether a case falls within a class
                  for which the advocate or solicitor must be paid by the Judicial
                  Greffier for the provision of legal services;
            (g)   make provision for determining the rates and amounts of payments
                  for the provision of legal aid,
            (h)   make provision for the criteria for the payment of financial
                  contributions by persons eligible for legal aid to –
                  (i)   their advocate or solicitor, or
                  (ii)    the Judicial Greffier;
            (i)   make provision for limiting financial contributions under sub-
                  paragraph (h) to –

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